WEEKLY IMMIGRATION UPDATE – January 19, 2021
- U.S. To Require Negative COVID-19 Tests From International Arrivals – Effective January 26, 2021, all passengers arriving in the United States by air from any foreign country, with a few exceptions, must present either a negative pre-departure coronavirus test or documentation of recovery from COVID-19. The requirement applies to all airline passengers ages two years and older traveling to the United States, including U.S. citizens and Lawful Permanent Residents (LPRs).
- DHS Extends Canada-U.S.-Mexico Border Restrictions – The Department of Homeland Security extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021.
- USCIS To Suspend All In-Person Services for Two Days – Following violent rioting and invasion of the U.S. Capitol and amid threats of further violence, USCIS will temporarily suspend in-person services at all field offices, asylum offices, and application support centers on January 19 and 20, 2021.
- Biden Administration Poised to Introduce Immigration-Related Executive Orders; Democrats Prepare Legislation – The Biden administration has plans to introduce executive orders and push for immigration legislation “immediately” after taking office.
- SEVP Announces New OPT Employment Compliance Unit – The Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training.
- Labor, Homeland Security Dept. Issue Final Rules Changing Prevailing Wage Methodology, Employer-Employee Relationship – The agencies’ final rules make substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers.
- DHS Announces Countries Eligible for H-2A and H-2B Visa Programs – The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.
- Labor Dept. Updates Implementation of Final Rule on H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations in Response to Court Order – In response to a court order, the Department of Labor made changes to implementation of its final rule on AEWR methodology for non-range occupations.
- Labor Dept. Announces Pending H-2A Final Rule – The Department of Labor announced a final rule pending publication that mandates electronic filing of job orders and applications. The agency said this would make it easier to share information with the Department of Homeland Security and other entities.
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1. U.S. To Require Negative COVID-19 Tests From International Arrivals
Effective January 26, 2021, all airline or other aircraft passengers ages two years and older arriving in the United States from any foreign country must present: (1) a negative pre-departure test result for SARS-CoV-2, the virus that causes COVID-19 (Qualifying Test); or (2) written or electronic documentation of recovery from COVID-19 after previous infection in the form of a positive viral test result and a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel (Documentation of Recovery).
The requirement also applies to U.S. citizens and Lawful Permanent Residents (green card holders). Airlines must deny boarding to passengers who do not meet the CDC requirements. U.S. consular posts abroad are advising U.S. citizens in countries where robust COVID-19 testing is not available or who may not be able to satisfy the requirements to depart immediately or prepare to be unable to return to the United States until such time as they can meet the requirements.
This order supersedes the previous order from the Centers for Disease Control (CDC) issued on December 25, 2020, requiring proof of a negative COVID test result for all airline passengers arriving in the United States from the United Kingdom.
See the CDC Proof of Negative Test Result page to view the order, complete the attestation, and to see FAQs.
- U.S. Department of State COVID-19 Crisis Page COVID-19 Traveler Information (state.gov)
- “Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of Recovery From COVID-19 for All Airline or Other Aircraft Passengers Arriving Into the United States from Any Foreign Country,” CDC, https://www.cdc.gov/quarantine/pdf/global-airline-testing-order_2021-01-2_R3-signed-encrypted-p.pdf
- “Test for Current Infection,” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html
- “COVID-19: U.S. To Require Negative Virus Tests From International Air Travelers,” New York Times, https://www.nytimes.com/live/2021/01/12/world/covid-19-coronavirus#the-us-will-require-negative-virus-tests-from-international-passengers-arriving-by-air
2. DHS Extends Canada-U.S.-Mexico Border Restrictions
The Department of Homeland Security (DHS) extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021. The restrictions suspend entry via land border, ferry crossing, passenger rail, or coastal ports of entry from Canada and/or Mexico for pleasure boat travel of immigrants and nonimmigrants, including any travel that is not deemed essential. The restrictions do not apply to air, freight rail, or sea travel.
The determination of essential travel is at the discretion of the port of entry and exceptions to the restrictions include U.S. citizens and lawful permanent residents returning to the United States, individuals traveling for medical purposes and to attend educational institutions, individuals traveling to work in the United States, and other reasons.
- “Temporary Travel Restrictions to Land Border and Ferries Between the United States, Canada and Mexico,” U.S. Customs and Border Protection, https://help.cbp.gov/s/article/Article-1694?language=en_US
3. USCIS To Suspend All In-Person Services for Two Days
Following violent rioting and invasion of the U.S. Capitol and amid threats of further violence, U.S. Citizenship and Immigration Services (USCIS) announced that it “will temporarily suspend in-person services at all field offices, asylum offices and application support centers” on January 19 and 20, 2021, “to ensure the safety of our employees and individuals with appointments.”
USCIS will reschedule individuals who had appointments on those dates and send them notices with their new appointment dates.
4. Biden Administration Poised to Introduce Immigration-Related Executive Orders; Democrats Prepare Legislation
According to reports, the Biden administration plans to introduce executive orders and push for immigration legislation “immediately” after taking office. After a related conference call, commenters called the plans “groundbreaking,” “bold,” and “aggressive.” Congressional Democrats and advocates have been working on a bill. Ideas in the mix include a pathway to U.S. citizenship for an estimated 11 million undocumented people, permanent residence for people with temporary protected status, and an extension of the Deferred Action for Childhood Arrivals (DACA) program and permanent residence for DACA recipients.
President-elect Biden was reported as noting that impeachment proceedings in the Senate may slow progress on legislation, along with the need to pass Covid-19 pandemic relief.
Immigration reform legislation has been notoriously difficult to pass. It is unclear whether the legislation will be introduced in one comprehensive sweep or broken down into smaller bills, or some of both. Litigation could also have an impact on the Biden administration’s plans.
- “Democrats Ready Immigration Push for Biden’s Early Days,” Politico, https://www.politico.com/news/2021/01/15/biden-immigration-plans-459766
- “Biden Plans Early Legislation to Offer Legal Status to 11 Million Immigrants Without It,” Los Angeles Times, https://lat.ms/3bNnKnM
- “Biden Plans ‘Roughly a Dozen’ Day One Executive Actions: Aide,” Reuters, https://reut.rs/2M1tX4g
- “Trump’s Executive Orders on Immigration Could Be Tough to Undo,” Daily Labor Report, Bloomberg Law, https://news.bloomberglaw.com/daily-labor-report/trumps-executive-orders-on-immigration-could-be-tough-to-undo
- “The Biden Plan for Securing Our Values as a Nation of Immigrants,” https://joebiden.com/immigration/
5. SEVP Announces New OPT Employment Compliance Unit
The Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training. The unit will publish a report at least annually on its findings, with the first report to be published on ICE.gov by July 31, 2021.
The unit will be responsible for “recommending investigations of employers and students, as needed, to Homeland Security Investigations (HSI) to ensure that the OPT programs operate in a lawful manner at U.S. worksites.” The unit will also “evaluate whether employers are adhering to the attestations and training plans required under the OPT extension, which will include on-site visitation.”
- “Broadcast Message: New SEVP Unit to Oversee Employment Compliance in the OPT Programs and Report on Impact on U.S. Workers,” U.S. Immigration and Customs Enforcement, Jan. 13, 2021, https://www.ice.gov/doclib/sevis/pdf/bcm2101-02.pdf
6. DOL and DHS Labor Issue Final Rules Changing Prevailing Wage Methodology for PERM, H-1B, H-1B1, E-3; and H-1B Employer-Employee Relationship
The Departments of Labor (DOL) and Homeland Security (DHS) issued final rules making substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers. Below are selected highlights of the two rules and related guidance.
DOL final rule. On January 14, 2021, DOL published a final rule changing the prevailing wage methodology for several immigrant and nonimmigrant foreign worker programs. The final rule is effective March 15, 2021, but filers will not be required to use the revised prevailing wage methodology until July 1, 2021.
Among other things, the final rule changes the calculation of prevailing wages for jobs requiring certain employment-based immigrant visas or for jobs in the PERM, H-1B, H-1B1, and E-3 visa programs for which employers seek labor certification. The related interim final rule, issued in October 2020, was scuttled by court decisions. DOL said it made changes to the interim rule in response to comments. For example, the agency adjusted the Level I and Level IV wages downward to the 35th percentile and 90th percentile, respectively, and is implementing changes to how it uses data in the H-1B and PERM programs “that will further reduce the incidence of inappropriately inflated wages identified by commenters.” DOL also is adopting a “phase-in approach” to give employers and workers time to adapt.
DHS final rule. On January 15, 2021, DHS released a final rule on its website that it has sent for publication in the Federal Register. The rule amends its regulations, for petitions filed on or after the effective date of the regulation, to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between an H-1B petitioner and a beneficiary for the purposes of qualifying as a “United States employer.” DHS said it is not finalizing other provisions of the related interim final rule published in the Federal Register on October 8, 2020, and that it “plans to pursue future rulemaking for those provisions,” which were vacated by the U.S. District Court for the Northern District of California on December 1, 2020.
The final rule adopts a “common-law test” for determining which entities have an employment relationship with an H-1B worker. Under the common law, DHS explained, “multiple entities can have an employment relationship with a worker simultaneously.” Under a third-party placement arrangement, therefore, it is possible that the third-party entity would also be considered an employer of the H-1B worker and would be required to file a petition for the H-1B worker. DHS said that because adoption of the rule “may require adjustments to business practices on the part of employers, including third-party common-law employers,” the agency determined that it is appropriate for the rule to take effect 180 days from publication.
Related guidance. DOL’s Office of Foreign Labor Certification (OFLC) revised its interpretation of regulations concerning which employers of H-1B workers must file a Labor Condition Application (LCA). Under the interpretation announced on January 15, 2021, all common-law employers of H-1B workers, including any secondary employers meeting the common-law test, must file an LCA.
The OFLC bulletin explained that H-1B employment frequently involves primary employers, such as staffing agencies, that petition to hire H-1B workers, as well as secondary employers, such as staffing agencies’ clients, where the H-1B workers are assigned to work. Secondary employers must now comply with the statutory and regulatory requirements of the H-1B program if they are common-law employers of the H-1B worker, OFLC said.
Also, on January 15, 2021, DOL released a bulletin providing guidance to Wage and Hour Division field staff regarding H-1B program obligations for common-law employers “in light of interpretive changes being made” by DHS and DOL.
Litigation is expected.
- DOL final rule, https://bit.ly/3swjZsG
- DHS final rule (not yet published in the Federal Register), https://www.dhs.gov/sites/default/files/publications/21_0115_uscis_strengthening-final-rule.pdf
- “DHS and DOL Team Up on H-1B Visas Against IT Services Companies,” Forbes, https://www.forbes.com/sites/stuartanderson/2021/01/18/dhs-and-dol-team-up-on-h-1b-visas-against-it-services-companies/?sh=417c765547e9
- “Labor Department Raises Mandatory Wages for H-1B Workers,” India West, https://bit.ly/3bNskSW
- “U.S. Agency Issues Final Wage Rules for H-1Bs and Green Card Holders, Higher Wages to Apply in a Phased Manner,” Times of India, https://bit.ly/3ip3tWD
- “DOL H-1B Visa Wage Rule: Donald Trump’s Bad Parting Gift to Immigrants,” Forbes, https://www.forbes.com/sites/stuartanderson/2021/01/13/dol-h-1b-visa-wage-rule-donald-trumps-bad-parting-gift-to-immigrants/?sh=1a069506774f (available by registration)
- “Trump Administration Moves Ahead With H-1B Pay Rule Over Silicon Valley’s Objections,” https://www.sfchronicle.com/business/article/Trump-administration-moves-ahead-with-H-1B-pay-15865554.php
- “OFLC Announces Revised Interpretation and Issues New Guidance Clarifying Requirements Under the H-1B Program,” OFLC, Jan. 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor
- “H-1B Program Obligations for Common-Law Employers,” DOL Field Assistance Bulletin, Jan. 15, 2021, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_1.pdf
7. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs
The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.
For 2021, the Departments agreed to:
- Add the Philippines to the H-2B list;
- No longer designate Samoa and Tonga as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
- No longer designate Mongolia as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program.
- DHS Federal Register notice, https://bit.ly/3immXep
- DHS announcement, https://www.uscis.gov/news/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs
8. Labor Dept. Updates Implementation of Final Rule on H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations in Response to Court Order
In response to a court order, the Department of Labor (DOL) made changes to implementation of its final rule on adverse effect wage rate (AEWR) methodology for non-range occupations. On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers v. DOL, enjoining the agency from implementing its final rule, issued November 5, 2020, on AEWR methodology for the temporary employment of H-2A nonimmigrants in non-range occupations, and ordering DOL to operate under the 2010 rule.
On January 12, 2021, the court issued a supplemental order requiring DOL to publish the AEWRs for 2021 by February 25, 2021, using the methodology set forth in the 2010 rule, and to make those AEWRs effective upon their publication. Additionally, the court ordered DOL to notify all state workforce agencies, employers, and the general public that the AEWRs in effect on December 20, 2020, will remain in effect during the interim period until DOL publishes 2021 AEWRs in the Federal Register.
Additionally, the court reserved decision on whether an award of back pay is warranted based on the difference, if any, between the 2020 AEWRs and the final 2021 AEWRs. DOL reminded employers to record the names and permanent home addresses of all H-2A workers who may later be entitled to back pay.
- “OFLC Announces Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations Final Rule; Compliance with District Court Order,” January 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor
9. Labor Dept. Announces Pending H-2A Final Rule
The Department of Labor (DOL) announced a final rule pending publication that mandates electronic filing of job orders and applications. DOL said the action is “designed to bring the H-2A application process into the digital era, by harnessing the power of the FLAG electronic filing system to share information with other federal agencies like the Department of Homeland Security while also sharing information with the State Workforce systems and domestic farmworkers.”
Additionally, the final rule will include the ability to stagger the entry of workers into the United States over a 120-day period and will allow agricultural employers to file a single application for different dates of need instead of multiple applications.
The agency said it expects the final rule to be published shortly, with a 30-day delayed effective date from the date of publication.
- “U.S. Department of Labor Announces a Final Rule Which Modernizes and Improves the H-2A Temporary Agricultural Program,” January 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor
- Final rule draft submitted to the Federal Register, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A-2020-final-rule-1_8_2021-Clean-with-disclaimer.pdf
Naturalization civics test webinar. The USCIS Office of Citizenship will host a two-hour webinar on the 2020 revised naturalization civics test on January 14, 2021, at 10 a.m. and 2 p.m. For more information or to register, see https://www.uscis.gov/citizenship/resources-for-educational-programs/register-for-training.
AGENCY PROCESSING TIMES
USCIS case processing times: https://egov.uscis.gov/processing-times/
US Department of Labor: https://flag.dol.gov/processingtimes
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information
American Immigration Lawyers Association: (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security: DHS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/coronavirus
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
– Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
– COVID-19 FAQs:
Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf
State Department: https://www.state.gov/coronavirus/
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/
Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
AGENCY TWITTER ACCOUNTS
Study in the States: @StudyinStates
I-9 AND E-VERIFY WEBINARS
USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. For more information or to register, see: https://www.justice.gov/crt/webinars.
E-Verify webinar schedule: https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.